Colburn v. Ozaukee County

• Decision Date: 04 June 1968
• Citation: Colburn v. Ozaukee County, 159 N.W.2d 33, 39 Wis.2d 231 (Wis. 1968)
• Parties: George R. COLBURN, Jr., et al., Appellants, v. OZAUKEE COUNTY, Respondent.
• Court: Wisconsin Supreme Court

Page 33

159 N.W.2d 33

39 Wis.2d 231

George R. COLBURN, Jr., et al., Appellants, v. OZAUKEE COUNTY, Respondent.

Supreme Court of Wisconsin.

June 4, 1968.

Gregory Gramling, Jr., Milwaukee, Roland J. Steinle, Jr., Milwaukee, of counsel, for appellants.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, for respondent.

ROBERT W. HANSEN, Justice.

The incident or accident on which the claim of county tort liability is based in this case took place after the judicial abrogation in this state of governmental immunity as to torts, ¹ but before the legislative setting of maximum damage limits and requirement of notice of injury within 120 days to the governmental subdivision involved. ²

As to this interim period between the court's decision (in the Holytz case) and the legislature's action (sec. 895.43), we deal with two statutes in interpreting the document filed by plaintiffs with defendant. One provides for a 'notice of injury,' requiring notice within 30 days of an accident, the place, the defect and that damages are claimed. ³ This relates to claims based on insufficiency or want of repair of 'highways', which word has been consistently construed to include sidewalks. ⁴

The second pertinent statute provides for a 'claim' being presented to the county which must be granted or disallowed by the county before an action can be brought against the county. ⁵ This statute does not set a limit as to the time within which such claim must be presented, but does provide that, once a claim has been presented and disallowed, the action must be brought within six months.

Was the notice entitled 'Notice of Injury' filed by plaintiffs with defendant in this case in fact a 'notice of injury' pursuant to sec. 81.15? If it is that and just that, this action must be dismissed without prejudice because no 'claim' has yet been filed with the county. However, plaintiffs might still present such 'claim' and, upon its disallowance, commence an action for damages.

Or was the document filed a 'claim' submitted pursuant to sec. 59.76(1)(2)? If it was this, or both a 'notice of injury' and a 'claim', plaintiffs' action for damages must be dismissed upon the merits by reason of failure to commence the action within six months after the disallowance of the claim.

The trial court considered the notice given to be a 'claim' within the meaning of sec. 59.76. This interpretation means that the county board disallowed such claim on February 19, 1964, by adjourning without considering or acting upon it, this being 'the next annual session of the board' after the claim was filed. It would then follow, as the trial court held, that plaintiffs' cause of action was barred by not being commenced within six months of the disallowance.

We find, however, that the document filed with Ozaukee County was a 'notice of injury' under sec. 81.15 and not a 'claim' under sec. 59.76. It was clearly denominated a 'Notice of Injury.' It was filed within 30 days of the event on which the right to seek damages is based. It states '* * * the place where such damages occurred.' It described generally '* * * the insufficiency and want of repair of the path, sidewalk, highway or other thoroughfare leading from the top of said bluff to the lakefront on account of the absence of a proper walking surface or steps, or railing or warning signs or other devices to protect travelers and users of such park * * *' further stating that the accident was caused by county negligence '* * * in permitting beer cans, trash and debris to litter the said path, sidewalk, highway or other thoroughfare in such wise as to create an unreasonable hazard to travelers, users of the public park and frequenters.' (Emphasis supplied.) The use of language required by sec. 81.15 is clearly evident.

It is true that the document we are required to interpret concluded with the notice that '* * * satisfaction for such injuries and damage on behalf of the said minor' was being claimed 'to' the amount of fifty thousand dollars, and that '* * * satisfaction for such damages as have been incurred by the parents of such minor' was being claimed 'up to' the amount of fifteen thousand dollars. However, sec. 81.15 clearly requires that the 'notice of injury' include the assertion that 'satisfaction therefor is claimed of such county.' The setting of upper limits by the use of the word 'to' and the words 'up to' does not take the 'notice of injury' beyond sec. 81.15 and make it the 'claim' required by sec. 59.76. That the notice stated damage limits above the $10,000 ceiling of sec. 81.15 as it then read was no more than a reservation by plaintiffs of possible rights to recovery under a different theory of the case.

We are helped to this conclusion by the admitted fact that the county officials in Ozaukee County treated the document here in question as a 'notice of injury,' not as a 'claim.' The Ozaukee County clerk testified that he never presented the document to the county board as a 'claim' against the county. (Sec. 59.79 requires the county clerk to 'lay before' the board, at the first meeting possible, any sec. 59.76 'claims' which have been filed.) The county board took no action of any kind on the document filed. The plaintiffs was never notified that her claim had been disallowed. It is clear that the defendant considered the notice to be no more than a notice of injury. This is not conclusive as to the nature of the document, but it certainly does not weaken the interpretation that it was a notice, not a claim.

Where a 'notice of injury' requirement and a 'notice of claim' prerequisite to a suit against a county exist side by side, the distinction in purpose between the two must be kept in mind. In Wentworth v. Town of Summit, ⁶ this court pointed out that a principal purpose of a notice of injury statute is to enable municipal officers to investigate the matter, while the principal purpose of a filing of claim statute is to afford the municipality an opportunity to effect compromise without suit. More recently, this court has stated that a notice of injury statute performs an entirely different function than does a filing of claim statute. ⁷ The purpose intended and effected here was that of giving notice of injury to the county. As was done in the Pattermann case, we reject the contention that the notice here...